Protection & Advocacy System, Inc. v. Freudenthal

• Decision Date: 06 January 2006
• Docket Number: No. CIV.A. 05CV014J.,CIV.A. 05CV014J.
• Citation: 412 F.Supp.2d 1211
• Parties: PROTECTION & ADVOCACY SYSTEM, INC. Plaintiff, v. David FREUDENTHAL, in his official capacity as Governor of the State of Wyoming; Brent Sherard, in his official capacity as Director of the Wyoming Department of Health; Pablo Hernandez, in his official capacity as Administrator of the Wyoming State Hospital; Diane Baird-Hudson, in her official capacity as Administrator of the Wyoming State Training School; Defendants.
• Court: U.S. District Court — District of Wyoming

412 F.Supp.2d 1211

PROTECTION & ADVOCACY SYSTEM, INC. Plaintiff, v. David FREUDENTHAL, in his official capacity as Governor of the State of Wyoming; Brent Sherard, in his official capacity as Director of the Wyoming Department of Health; Pablo Hernandez, in his official capacity as Administrator of the Wyoming State Hospital; Diane Baird-Hudson, in her official capacity as Administrator of the Wyoming State Training School; Defendants.

No. CIV.A. 05CV014J.

United States District Court, D. Wyoming.

January 6, 2006.

Kathleen M. Karpan, Bagley Karpan Rose & White, Cheyenne, WY, for Plaintiff.

Melissa E. Westby, Patrick J. Crank, Wyoming Attorney General's Office, Terry L. Armitage, Wyoming Attorney General, Cheyenne, WY, for Defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

ALAN B. JOHNSON, Chief Judge.

This Court has been asked to decide whether the confidentiality provisions of two federal statutes, the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 1320d to d-8, and the federal Medicaid Act, 42 U.S.C. § 1396a(a)(7), prohibit the Plaintiff from accessing records at the Wyoming State Hospital and the Wyoming State Training School in accordance with the access authority set forth in the Protection and Advocacy for Individuals with Mental Illness Act, (hereinafter the "PAIMI Act"), 42 U.S.C. § 10801 et seq., the Developmental Disabilities Assistance and Bill of Rights Act (hereinafter, "DD Act"), 42 U.S.C. § 15001 et seq., and the Protection and Advocacy for Individual Rights Act (hereinafter, the "PAIR Act"), 29 U.S.C. § 794e, (collectively referred to as the "P & A" acts).

In its Amended Complaint, Plaintiff asserts that Defendants have denied access to records at the Wyoming State Hospital and Wyoming State Training School in violation of the P & A acts. Defendants raise the issue of the extent to which HIPAA and the Medicaid Act affect the disclosure requirements in the P & A acts. These concerns create a live case or controversy, as distinguished from the recent protection and advocacy case of Disability Law Center v. Millcreek Health Center, 428 F.3d 992 (10th Cir.2005).

The Court holds that neither HIPAA nor the Medicaid Act bars the Plaintiff from accessing records at the Wyoming State Hospital and the Wyoming State Training School as long as the disclosure is required by a P& A act and P& A complies with all requirements set forth in the P & A act. The Court further holds that the access agreement (attached as Appendix A) complies with all current applicable laws.

FINDINGS OF FACT

I. THE PARTIES

The P & A acts authorize creation in each state of a protection and advocacy system for persons with certain disabilities. Understanding the genesis of the protection and advocacy systems is helpful to resolution of this case.

In response to the "inhumane and despicable conditions" discovered at a New York institution for persons with developmental disabilities, Congress enacted the DD Act to protect the civil rights of this vulnerable population. Pursuant to the Act, a state cannot receive federal funds for services to persons with developmental disabilities unless it has established a protection and advocacy system. Alabama Disabilities Advocacy Program v. J.S. Tarwater Developmental Center, 97 F.3d 492, 495 (11th Cir.1996).

Following hearings in 1985 to examine the care and treatment of persons with mental illness who were residents of institutions, Congress in 1986 enacted the PAIMI Act to "assure the constitutional and statutory rights of the mentally ill are protected and to assure investigation of abuse and neglect." Robbins v. Budke, 739 F.Supp. 1479, 1481 (D.N.M.1990).

Plaintiff Protection & Advocacy System, Inc., (hereinafter, "P & A"), is the designated system in Wyoming. The PAIMI Act applies to persons with mental illness, and the DD Act applies to persons with developmental disabilities. The Protection and Advocacy of Individual Rights Program ("PAIR") was created by Congress in an amendment to the Rehabilitation Act of 1973 and is codified at 29 U.S.C. § 794e. PAIR applies to persons with disabilities who do not have a developmental disability and are not persons with mental illness.

These acts and their implementing regulations authorize P & A to investigate allegations of abuse and neglect; to monitor; to provide training on rights and make referrals and to pursue legal, administrative and other remedies. They also authorize P & A to obtain access to records under specific circumstances.

The PAIMI Act and DD Act have slightly different access provisions. The PAIR Act authorizes P & A to have the same access rights as the DD Act. 29 U.S.C. § 794e(f)(1)-(2); Iowa Protection and Advocacy Services, Inc. v. Res-Care Premium, Inc. No. 4-02-CV-10112 (S.D.Iowa 2002) and Connecticut Office of Protection and Advocacy for Persons with Disabilities v. Hartford Board of Education, 355 F.Supp.2d 649 at 657-658 (D.Conn.2005).

The Wyoming State Hospital (hereinafter, "State Hospital") is a state institution which was established in 1886. It is the only publicly funded, psychiatric inpatient facility in the State. The State Hospital is an agency within the Wyoming Department of Health, and is a "covered entity," as that term is defined in the Health Insurance Portability and Accountability Act (hereinafter, "HIPAA"), 42 U.S.C. § 1320d.

The Wyoming State Training School (hereinafter, "State Training School") is a state institution which was opened in 1912, originally as an inpatient facility for persons with developmental disabilities. The State Training School continues to serve individuals with developmental disabilities. It also provides support and services to individuals who are dually diagnosed with developmental disabilities and mental illness. The State Training School also provides inpatient services for persons with traumatic brain injuries. The State Training School is an agency within the Wyoming Department of Health and is a "covered entity," as that term is defined in HIPAA. The Wyoming Medicaid program pays for services to some of the patients of the State Training School.

II. ISSUES

The parties agree that the P & A acts authorize P & A to obtain patient and other records from the State Hospital and State Training School in certain circumstances. However, Defendants question the extent to which HIPAA and the Medicaid Act affect those rights of access. Thus, the parties have asked the Court to rule on the interplay between the P & A acts, which confer a right to access patient records under certain circumstances, and HIPPA and the Medicaid Act, which safeguard protected health information. The parties, through negotiations, have established a mutually acceptable access agreement (Appendix A), but it cannot be implemented if HIPAA or the Medicaid Act bar disclosure of the records to P & A.

CONCLUSIONS OF LAW

The issue of P & A's access to records requires the Court to consider other federal statutes which impose confidentiality requirements to protect individual records. The requirements regarding access and confidentiality rights relevant to this case are set forth in the PAIMI, DD and PAIR acts; in HIPAA, 42 U.S.C. § 1320d to d-8; and in the federal Medicaid confidential data standards, as established by § 1902(a)(7) of the Social Security Act (hereinafter, "Medicaid"), 42 U.S.C. § 1396a(a)(7).

I. RELEVANT ACCESS AND CONFIDENTIALITY LAWS

A. P & A Statutes on Access to Records

In order for P & A to carry out its statutory mandate to investigate allegations of abuse and neglect and to pursue appropriate administrative, legal and other remedies, it is critical that P & A be able to obtain access to facilities, residents, staff and records as provided under the acts. As the Eleventh Circuit Court of Appeals said with regard to the DD Act, "[I]t is clear the Act provides express authority for P & A's to gain broad access to records, facilities and residents to ensure that the Act's mandates can be effectively pursued." Alabama Disabilities Advocacy Program v. J.S. Tarwater Developmental Center, supra, at 97 F.3d at 497, citing Mississippi Protection and Advocacy System, Inc. v. Cotten, 929 F.2d 1054, 1058-59 (5th Cir.1991) (facilities have an affirmative duty to implement policies and practices which promote effective P & A access); Robbins v. Budke, 739 F.Supp. 1479, 1485-1489 (P & A's must have meaningful access to carry out their protection mandate).

The DD Act applies to persons with developmental disabilities, as defined at 42 U.S.C. § 15002(8). It authorizes disclosure of individual patient records to P & A at 42 U.S.C. § 15043(a)(2)(I), which specifically provides for access in the following circumstances:

(i) any individual with a developmental disability who is a client of the system if such individual, or the legal guardian, conservator, or other legal representative of such individual, has authorized the system to have such access;

(ii) any individual with a developmental disability, in a situation in which—

(I) the individual, by reason of such individual's mental or physical condition, is unable to authorize the system to have such access;

(II) the individual does not have a legal guardian, conservator, or other legal representative, or the legal guardian of the individual is the State; and

(III) a complaint has been received by the system about the individual with regard to the status or treatment of the individual or, as a result of monitoring or other activities, there is probable cause to believe that such individual has been subject to abuse or neglect; and

(iii) any individual with a developmental disability in a situation in which—

(I) the individual has a legal guardian, conservator, or other legal representative;

(II) a complaint has been received by the system about the individual with regard to the status or treatment of the individual or, as a result of monitoring or other activities, there is probable cause...